Florida Senate - 2016                        COMMITTEE AMENDMENT
       Bill No. CS for SB 494
       
       
       
       
       
       
                                Ì254758RÎ254758                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  01/20/2016           .                                
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       The Committee on Rules (Montford) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 171 - 502
    4  and insert:
    5  to disclose to a designated recipient or not to disclose some or
    6  all of the user’s digital assets, including the content of
    7  electronic communications. If the online tool allows the user to
    8  modify or delete a direction at all times, a direction regarding
    9  disclosure using an online tool overrides a contrary direction
   10  by the user in a will, trust, power of attorney, or other
   11  record.
   12         (2)If a user has not used an online tool to give direction
   13  under subsection (1) or if the custodian has not provided an
   14  online tool, the user may allow or prohibit disclosure to a
   15  fiduciary of some or all of the user’s digital assets, including
   16  the content of electronic communications sent or received by the
   17  user, in a will, trust, power of attorney, or other record.
   18         (3)A user’s direction under subsection (1) or subsection
   19  (2) overrides a contrary provision in a terms-of-service
   20  agreement that does not require the user to act affirmatively
   21  and distinctly from the user’s assent to the terms of service.
   22         Section 5. Section 740.004, Florida Statutes, is created to
   23  read:
   24         740.004Terms-of-service agreement preserved.
   25         (1)This chapter does not change or impair a right of a
   26  custodian or a user under a terms-of-service agreement to access
   27  and use the digital assets of the user.
   28         (2) This chapter does not give a fiduciary or a designated
   29  recipient any new or expanded rights other than those held by
   30  the user for whom, or for whose estate or trust, the fiduciary
   31  or designated recipient acts or represents.
   32         (3) A fiduciary’s or designated recipient’s access to
   33  digital assets may be modified or eliminated by a user, by
   34  federal law, or by a terms-of-service agreement if the user has
   35  not provided direction under s. 740.003.
   36         Section 6. Section 740.005, Florida Statutes, is created to
   37  read:
   38         740.005Procedure for disclosing digital assets.—
   39         (1) When disclosing the digital assets of a user under this
   40  chapter, the custodian may, at its sole discretion:
   41         (a) Grant a fiduciary or designated recipient full access
   42  to the user’s account;
   43         (b)Grant a fiduciary or designated recipient partial
   44  access to the user’s account sufficient to perform the tasks
   45  with which the fiduciary or designated recipient is charged; or
   46         (c)Provide a fiduciary or designated recipient a copy in a
   47  record of any digital asset that, on the date the custodian
   48  received the request for disclosure, the user could have
   49  accessed if the user were alive and had full capacity and access
   50  to the account.
   51         (2)A custodian may assess a reasonable administrative
   52  charge for the cost of disclosing digital assets under this
   53  chapter.
   54         (3)A custodian is not required to disclose under this
   55  chapter a digital asset deleted by a user.
   56         (4)If a user directs or a fiduciary requests a custodian
   57  to disclose under this chapter some, but not all, of the user’s
   58  digital assets to the fiduciary or a designated recipient, the
   59  custodian is not required to disclose the assets if segregation
   60  of the assets would impose an undue burden on the custodian. If
   61  the custodian believes the direction or request imposes an undue
   62  burden, the custodian or the fiduciary may seek an order from
   63  the court to disclose:
   64         (a)A subset limited by date of the user’s digital assets;
   65         (b)All of the user’s digital assets to the fiduciary or
   66  designated recipient, or to the court for review in chambers; or
   67         (c)None of the user’s digital assets.
   68         Section 7. Section 740.006, Florida Statutes, is created to
   69  read:
   70         740.006Disclosure of content of electronic communications
   71  of deceased user.If a deceased user consented to or a court
   72  directs the disclosure of the content of electronic
   73  communications of the user, the custodian shall disclose to the
   74  personal representative of the estate of the user the content of
   75  an electronic communication sent or received by the user if the
   76  personal representative gives to the custodian:
   77         (1)A written request for disclosure which is in physical
   78  or electronic form;
   79         (2)A certified copy of the death certificate of the user;
   80         (3)A certified copy of the letters of administration, the
   81  order authorizing a curator or administrator ad litem, the order
   82  of summary administration issued pursuant to chapter 735, or
   83  other court order;
   84         (4)Unless the user provided direction using an online
   85  tool, a copy of the user’s will, trust, power of attorney, or
   86  other record evidencing the user’s consent to disclosure of the
   87  content of electronic communications; and
   88         (5)If requested by the custodian:
   89         (a)A number, username, address, or other unique subscriber
   90  or account identifier assigned by the custodian to identify the
   91  user’s account;
   92         (b)Evidence linking the account to the user; or
   93         (c)A finding by the court that:
   94         1.The user had a specific account with the custodian,
   95  identifiable by information specified in paragraph (a);
   96         2.Disclosure of the content of electronic communications
   97  of the user would not violate 18 U.S.C. s. 2701 et seq., 47
   98  U.S.C. s. 222, or other applicable law;
   99         3.Unless the user provided direction using an online tool,
  100  the user consented to disclosure of the content of electronic
  101  communications; or
  102         4.Disclosure of the content of electronic communications
  103  of the user is reasonably necessary for the administration of
  104  the estate.
  105         Section 8. Section 740.007, Florida Statutes, is created to
  106  read:
  107         740.007Disclosure of other digital assets of deceased
  108  user.—Unless a user prohibited disclosure of digital assets or
  109  the court directs otherwise, a custodian shall disclose to the
  110  personal representative of the estate of a deceased user a
  111  catalog of electronic communications sent or received by the
  112  user and digital assets of the user, except the content of
  113  electronic communications, if the personal representative gives
  114  to the custodian:
  115         (1)A written request for disclosure which is in physical
  116  or electronic form;
  117         (2)A certified copy of the death certificate of the user;
  118         (3)A certified copy of the letters of administration, the
  119  order authorizing a curator or administrator ad litem, the order
  120  of summary administration issued pursuant to chapter 735, or
  121  other court order; and
  122         (4) If requested by the custodian:
  123         (a)A number, username, address, or other unique subscriber
  124  or account identifier assigned by the custodian to identify the
  125  user’s account;
  126         (b)Evidence linking the account to the user;
  127         (c)An affidavit stating that disclosure of the user’s
  128  digital assets is reasonably necessary for the administration of
  129  the estate; or
  130         (d)An order of the court finding that:
  131         1.The user had a specific account with the custodian,
  132  identifiable by information specified in paragraph (a); or
  133         2.Disclosure of the user’s digital assets is reasonably
  134  necessary for the administration of the estate.
  135         Section 9. Section 740.008, Florida Statutes, is created to
  136  read:
  137         740.008Disclosure of content of electronic communications
  138  of principal.To the extent a power of attorney expressly grants
  139  an agent authority over the content of electronic communications
  140  sent or received by the principal and unless directed otherwise
  141  by the principal or the court, a custodian shall disclose to the
  142  agent the content if the agent gives to the custodian:
  143         (1)A written request for disclosure which is in physical
  144  or electronic form;
  145         (2)An original or copy of the power of attorney expressly
  146  granting the agent authority over the content of electronic
  147  communications of the principal;
  148         (3)A certification by the agent, under penalty of perjury,
  149  that the power of attorney is in effect; and
  150         (4)If requested by the custodian:
  151         (a)A number, username, address, or other unique subscriber
  152  or account identifier assigned by the custodian to identify the
  153  principal’s account; or
  154         (b)Evidence linking the account to the principal.
  155         Section 10. Section 740.009, Florida Statutes, is created
  156  to read:
  157         740.009Disclosure of other digital assets of principal.
  158  Unless otherwise ordered by the court, directed by the
  159  principal, or provided by a power of attorney, a custodian shall
  160  disclose to an agent with specific authority over the digital
  161  assets or with general authority to act on behalf of the
  162  principal a catalog of electronic communications sent or
  163  received by the principal, and digital assets of the principal,
  164  except the content of electronic communications, if the agent
  165  gives the custodian:
  166         (1)A written request for disclosure which is in physical
  167  or electronic form;
  168         (2)An original or a copy of the power of attorney which
  169  gives the agent specific authority over digital assets or
  170  general authority to act on behalf of the principal;
  171         (3)A certification by the agent, under penalty of perjury,
  172  that the power of attorney is in effect; and
  173         (4)If requested by the custodian:
  174         (a)A number, username, address, or other unique subscriber
  175  or account identifier assigned by the custodian to identify the
  176  principal’s account; or
  177         (b)Evidence linking the account to the principal.
  178         Section 11. Section 740.01, Florida Statutes, is created to
  179  read:
  180         740.01Disclosure of digital assets held in trust when
  181  trustee is the original user.Unless otherwise ordered by the
  182  court or provided in a trust, a custodian shall disclose to a
  183  trustee that is an original user of an account any digital asset
  184  of the account held in trust, including a catalog of electronic
  185  communications of the trustee and the content of electronic
  186  communications.
  187         Section 12. Section 740.02, Florida Statutes, is created to
  188  read:
  189         740.02Disclosure of content of electronic communications
  190  held in trust when trustee is not the original user.—Unless
  191  otherwise ordered by the court, directed by the user, or
  192  provided in a trust, a custodian shall disclose to a trustee
  193  that is not an original user of an account the content of an
  194  electronic communication sent or received by an original or
  195  successor user and carried, maintained, processed, received, or
  196  stored by the custodian in the account of the trust if the
  197  trustee gives the custodian:
  198         (1)A written request for disclosure which is in physical
  199  or electronic form;
  200         (2)A certified copy of the trust instrument, or a
  201  certification of trust under s. 736.1017, which includes consent
  202  to disclosure of the content of electronic communications to the
  203  trustee;
  204         (3)A certification by the trustee, under penalty of
  205  perjury, that the trust exists and that the trustee is a
  206  currently acting trustee of the trust; and
  207         (4)If requested by the custodian:
  208         (a)A number, username, address, or other unique subscriber
  209  or account identifier assigned by the custodian to identify the
  210  trust’s account; or
  211         (b)Evidence linking the account to the trust.
  212         Section 13. Section 740.03, Florida Statutes, is created to
  213  read:
  214         740.03Disclosure of other digital assets held in trust
  215  when trustee is not the original user.—Unless otherwise ordered
  216  by the court, directed by the user, or provided in a trust, a
  217  custodian shall disclose to a trustee that is not an original
  218  user of an account, a catalog of electronic communications sent
  219  or received by an original or successor user and stored,
  220  carried, or maintained by the custodian in an account of the
  221  trust and any digital assets in which the trust has a right or
  222  interest, other than the content of electronic communications,
  223  if the trustee gives the custodian:
  224         (1)A written request for disclosure which is in physical
  225  or electronic form;
  226         (2)A certified copy of the trust instrument, or a
  227  certification of trust under s. 736.1017;
  228         (3)A certification by the trustee, under penalty of
  229  perjury, that the trust exists and that the trustee is a
  230  currently acting trustee of the trust; and
  231         (4)If requested by the custodian:
  232         (a)A number, username, address, or other unique subscriber
  233  or account identifier assigned by the custodian to identify the
  234  trust’s account; or
  235         (b)Evidence linking the account to the trust.
  236         Section 14. Section 740.04, Florida Statutes, is created to
  237  read:
  238         740.04Disclosure of digital assets to guardian of ward.—
  239         (1)After an opportunity for a hearing under chapter 744,
  240  the court may grant a guardian access to the digital assets of a
  241  ward.
  242         (2)Unless otherwise ordered by the court or directed by
  243  the user, a custodian shall disclose to a guardian the catalog
  244  of electronic communications sent or received by the ward and
  245  any digital assets in which the ward has a right or interest,
  246  other than the content of electronic communications, if the
  247  guardian gives the custodian:
  248         (a)A written request for disclosure which is in physical
  249  or electronic form;
  250         (b)A certified copy of letters of plenary guardianship of
  251  the property or the court order that gives the guardian
  252  authority over the digital assets of the ward; and
  253         (c)If requested by the custodian:
  254         1.A number, username, address, or other unique subscriber
  255  or account identifier assigned by the custodian to identify the
  256  ward’s account; or
  257         2.Evidence linking the account to the ward.
  258         (3)A guardian with general authority to manage the
  259  property of a ward may request a custodian of the digital assets
  260  of the ward to suspend or terminate an account of the ward for
  261  good cause. A request made under this section must be
  262  accompanied by a certified copy of the court order giving the
  263  guardian authority over the ward’s property.
  264         Section 15. Section 740.05, Florida Statutes, is created to
  265  read:
  266         740.05Fiduciary duty and authority.—
  267         (1)The legal duties imposed on a fiduciary charged with
  268  managing tangible property apply to the management of digital
  269  assets, including:
  270         (a) The duty of care;
  271         (b)The duty of loyalty; and
  272         (c)The duty of confidentiality.
  273         (2)A fiduciary’s or designated recipient’s authority with
  274  respect to a digital asset of a user:
  275         (a)Except as otherwise provided in s. 740.003, is subject
  276  to the applicable termsofservice agreement;
  277         (b)Is subject to other applicable law, including copyright
  278  law;
  279         (c)In the case of a fiduciary, is limited by the scope of
  280  the fiduciary’s duties; and
  281         (d)May not be used to impersonate the user.
  282         (3)A fiduciary with authority over the tangible personal
  283  property of a decedent, ward, principal, or settlor has the
  284  right to access any digital asset in which the decedent, ward,
  285  principal, or settlor had or has a right or interest and that is
  286  not held by a custodian or subject to a terms-of-service
  287  agreement.
  288         (4)A fiduciary acting within the scope of the fiduciary’s
  289  duties is an authorized user of the property of the decedent,
  290  ward, principal, or settlor for the purpose of applicable
  291  computer fraud and unauthorized computer access laws, including
  292  under chapter 815.
  293         (5)A fiduciary with authority over the tangible personal
  294  property of a decedent, ward, principal, or settlor:
  295         (a)Has the right to access the property and any digital
  296  asset stored in it; and
  297         (b)Is an authorized user for the purpose of computer fraud
  298  and unauthorized computer access laws, including under chapter
  299  815.
  300         (6)A custodian may disclose information in an account to a
  301  fiduciary of the user when the information is required to
  302  terminate an account used to access digital assets licensed to
  303  the user.
  304         (7)A fiduciary of a user may request a custodian to
  305  terminate the user’s account. A request for termination must be
  306  in writing, in paper or electronic form, and accompanied by:
  307         (a)If the user is deceased, a certified copy of the death
  308  certificate of the user;
  309         (b)A certified copy of the letters of administration; the
  310  order authorizing a curator or administrator ad litem; the order
  311  of summary administration issued pursuant to chapter 735; or the
  312  court order, power of attorney, or trust giving the fiduciary
  313  authority over the account; and
  314         (c)If requested by the custodian:
  315         1.A number, username, address, or other unique subscriber
  316  or account identifier assigned by the custodian to identify the
  317  user’s account;
  318         2.Evidence linking the account to the user; or
  319         3.A finding by the court that the user had a specific
  320  account with the custodian, identifiable by the information
  321  specified in subparagraph 1.
  322         Section 16. Section 740.06, Florida Statutes, is created to
  323  read:
  324         740.06Custodian compliance and immunity.—
  325         (1)Not later than 60 days after receipt of the information
  326  required under ss. 740.006-740.04, a custodian shall comply with
  327  a request under this chapter from a fiduciary or designated
  328  recipient to disclose digital assets or terminate an account. If
  329  the custodian fails to comply, the fiduciary or designated
  330  recipient may apply to the court for an order directing
  331  compliance.
  332         (2)An order under subsection (1) directing compliance must
  333  contain a finding that compliance is not in violation of 18
  334  U.S.C. s. 2702.
  335         (3)A custodian may notify a user that a request for
  336  disclosure or to terminate an account was made under this
  337  chapter.
  338         (4)A custodian may deny a request under this chapter from
  339  a fiduciary or designated recipient for disclosure of
  340  
  341  ================= T I T L E  A M E N D M E N T ================
  342  And the title is amended as follows:
  343         Delete lines 8 - 14
  344  and insert:
  345         to a designated recipient or to prohibit a custodian
  346         from disclosing digital assets under certain
  347         circumstances; providing that a specified user’s
  348         direction overrides a contrary provision in a terms
  349         of-service agreement under certain circumstances;
  350         creating s. 740.004, F.S.; providing construction;
  351         authorizing the modification of a fiduciary’s or
  352         designated recipient’s access to digital assets under
  353         certain circumstances;